Conceptualizing the role of consent in the definition of rape at the international criminal court: a norm transfer perspective

Over the past three decades, international criminal legal standards on sexual and gender-based violence have developed rapidly, sparking debate within feminist circles over the extent to which these developments might be relevant to domestic contexts in a process termed “norm transfer.” Indeed, non-governmental organizations and feminist scholars have called for domestic adoption of the International Criminal Court (ICC) definition of rape due to its omission of the element of the absence of consent. However, the place of consent in an international criminal definition of rape is a hotly contested topic, with disagreement as to whether rape in conflict should be considered “exceptional” or a continuation of everyday violence against women. This article provides a new lens through which to explore these questions by situating the feminist strategy of norm transfer within the complementarity-based system of the ICC. It uncovers a number of gaps within the ICC definition that raise questions not only about the status of the definition as a candidate for norm transfer but also about the robustness of the definition itself. The article concludes by considering the role of consent as an implicit element within the ICC definition and its operation as a defense.     

Rape Protests in India and the Birth of a New Repertoire

The gang rape of a young physiotherapy student on a moving bus in December of 2012, in Delhi, India, brought forward a series of countrywide protests. These protests were unique compared with prior protests in India, leading to a need to re-examine the political importance of social movements in the subcontinent. Using data from 748 newspaper reports on the demonstrations that took place from December 2012 to April 2013, this paper examines the unique characteristics of the rape protests and their implications on the birth of a new repertoire in social movements. For the first time in Indian history, women's rights and violence against women occupied the forefront of national politics, and was no longer limited to agendas of feminists and women's groups. The protests were not led by a specific interest group, but were spontaneous and horizontal in nature, with participants from various social and political backgrounds. This paper argues that with the help of technology and new social media that a new repertoire of protests emerged: a horizontal, spontaneous, mass movement across interest groups.     

An Interplay of Individual Motivations and Sociocultural Factors Predisposing Men to Acts of Rape in Kenya

ABSTRACT

There is a general public perception in Kenya that rapists are “sick” people who deserve to be put far away from the society. Consequently, rape perpetrators are left to be dealt with by the criminal justice system while most of the research has focused on the rape survivors without taking into consideration the need to explore and understand the motivations and sociocultural factors that could predispose men to rape. This paper examines this form of “deviant” sexuality characteristic of some men. The paper is based on findings of a study conducted in three main prisons in Kenya between January and March 2008. The study sample was drawn from the Kamiti, Naivasha, and Nyeri main prisons. Respondents were convicted rapists serving their jail terms. The findings suggest that a number of factors may predispose a man to rape. These factors could be either individual motivational factors, sociocultural factors, or a combination of both. The individual motivational factors identified included drug consumption, marital problems as an excuse for rape, inability to negotiate for consensual sex due to being shy or afraid of women, rape as a form of sexual access, psychological factors like pornographic influence and rape hallucinations, impersonal sex and power, and use of rape as a “tool” for punishment. On the other hand, the sociocultural factors identified included the view of rape as a sexual act rather than an act of violence, social attitude that the woman “invited” the rape, early childhood environment, cultural practices, peer influence, and a lack of parental advice on sexual activities.     

Effects of sexual arousal on men's and women's behavior in sexual disagreement situations

A role‐play procedure was used to investigate the effects of acceptance of rape supportive beliefs (RMA), sexual intimacy, and sexual arousal on behavior in sexual disagreement situations. In Experiment 1, 67 college women role‐played their responses to their date's initial and continued unwanted sexual advances after viewing either an erotic or a neutral videotape. The women were more definite in their nonverbal responses to the “continued” than to the “initial” sexual advances. Low RMA women were less definite, and high RMA women were more definite, in their nonverbal refusals of unwanted intercourse than of unwanted breast fondling. Low RMA women were more definite in their verbal refusals after viewing the neutral than the erotic videotape. In Experiment 2, 78 college men role‐played their responses to their date's first and second refusal of their sexual advances. Men were less compliant in response to the first than to the second refusal. High RMA men who viewed the neutral film were less compliant than were low RMA men. However, high RMA men who viewed the erotic film were more compliant than high RMA men who viewed the neutral film. The men who viewed the neutral film were less compliant with refusals of breast fondling than with refusals of intercourse. Additionally, men who viewed the erotic film were more compliant with refusals of genital fondling than with refusals of intercourse. Finally, sexual experience and sex‐role ideology predicted when the man would try the same advances again.     

从刑法的谦抑性论“婚内强奸”

许多西方国家在立法和司法实践中,逐渐认同了“婚内强奸”行为构成强奸罪。我国对“婚内强奸”立法规定模糊不明,理论学说众说纷纭,司法实践裁决不一。根据刑法的谦抑性理念,婚内强奸应在一定范围内有限成立强奸罪。作为现代刑法的一个基本理念,刑法的谦抑性影响着刑事立法、刑事司法的各个环节。在刑事立法层面,应从刑事实体法和程序法两方面对“婚内强奸”入罪进行限制,在刑事司法层面,应从定罪和量刑两方面对“婚内强奸”入罪进行限制。     

农户油菜种植及油菜生产机械化需求意愿实证研究

近年来,由于用工成本的不断上升,我国油菜种植面积停滞不前,而食用植物油自给率不断下降,因此对油菜种植意愿和提高劳动生产率的油菜生产机械化需求意愿的研究具有重要意义。通过对10个油菜主产省份737个样本的调研,从个人及家庭特征、土地资源禀赋、商品化率、油菜籽价格、是否使用相关机械等微观角度,比较分析影响农户油菜种植及油菜生产机械化需求意愿的主要因素,并描述目前油菜生产的基本现状,最后提出相应对策建议。     

美国刑事诉讼中强奸被害人的保护及其启示

在美国,强奸被害人在诉讼中处于被歧视的处境,这主要是因为强奸的立法和司法是建立在偏见和误解之上的。为了消除偏见和误解对强奸被害人造成的歧视,美国对强奸被害人采取了特别保护,包括制定强奸盾牌条款、允许使用特殊的专家证据、由女性及受过专门培训的人员办理强奸案件等措施。从美国对强奸被害人的保护中,可以获得两点启示：一是应该对强奸被害人实行特别保护,二是应该兼顾对被告人的保护。     

Drink Sluts,Brats and Immigrants as Others

Drawing on an analysis of the media debate on two Swedish rape cases involving alcohol, the present article argues that social norms and power structures are made visible both when debaters ascribe explanatory power to alcohol and when they do not. Using feminist intersectional theory, we argue that when debaters employ the concepts of “foreign culture” and “jet-set drinking culture,” respectively, to explain the rapes, they simultaneously (re)produce stereotypical discourses on gender, sexuality, class and ethnicity/nationality. The troublesome positions of the Immigrant, the Drink Slut and the Brat symbolize how these discourses intersect in the specific cases. To understand why alcohol is central in explaining rape in a fashionable area, but not in a socially disadvantaged area, we suggest that the official image of Sweden as a gender-equal, sexually liberal and multicultural society with small class differences blocks discussion of existing inequalities within the country. When rape happens in a place constructed as a “Swedish middle- and upper-class area,” alcohol and intoxication are used to symbolize the “uncivilized,” unpleasant and malicious among Swedish men. When rape happens in “socially disadvantaged neighbourhoods” populated by “immigrants,” the unpleasant instead resides in the “foreign culture.”     

Framing Megan Williams

This study examines mainstream television news coverage of the kidnapping and rape of Megan Williams in late 2007 and coverage of Williams' recantation in 2009. The publicity of this case provides a unique opportunity to scrutinize the under-examined topics of news coverage of white-on-black rape and white female perpetration. Feminist and critical media studies perspectives are called upon to provide an understanding of hegemonic discourses of gendered violence in media discourse. The intersection of race and class with such discourse is examined. Content and discourse analysis methods allow a critical examination of coverage of the Williams' story on four of the most watched television news sources in America. Results reveal disturbing trends in the framing of white-on-black perpetration. Additionally, stark differences in ideological constructions of rape and race are found among the news outlets examined, suggesting that some news sources do more to reproduce raced and gendered discourses of privilege than others.     

嫖宿幼女罪存与废之立法选择

我国刑法中的嫖宿幼女罪在立法上与其他相近罪名存在重叠现象,法定刑设置不甚合理,导致司法适用上存在争议,并引起嫖宿幼女罪存与废的讨论。我国刑法中有必要保留嫖宿幼女罪,在司法适用中存在的争议应当依赖立法完善予以解决。